Modify, extinguish or cancel - II

11 October 2012

Lapsing of personal servitudes
Personal servitudes which have not been made assignable or may not be registered as assignable (section 66) as in the case of usufruct, habitatio and usus lapse normally on the death of the holder but could, of course, lapse on the happening of an event specified in the servitude. A usufruct in favour of a juristic person lapses when the juristic person ceases to exist or after 100 years (Voet 7.4.1, Johannesburg Municipality v Transvaal Cold Storage Ltd 1904 TS 722, Goliath v Estate Goliath 1937 CPD 312 at 316). If a personal servitude has lapsed, section 68(1) of the Act provides that the registrar may note the lapsing on the title deed of the land and on the title deed of the servitude if produced to him. No transfer duty will be payable if the servitude has served its term.

Lapsing of a personal servitude by merger
If the person who enjoys a right of servitude over or in respect of land subsequently acquires that land, the servitude must obviously lapse by merger, but where a usufruct over land to be transferred to three owners is granted to such owners and another there is no lapsing by merger (see Glen & another NNO v Glen & another 1984 (3) SA 54 (T)). In such a case it is the practice to pass transfer of the land still subject to the servitude or condition and for the registrar then to endorse the transfer and the separate title to the servitude, if any, to the effect that the servitude has lapsed by merger. Note carefully, however, that, in terms of section 60, the registrar may not register the transfer of the land to the servitude holder if the servitude is mortgaged without the consent in writing of the holder of the bond. The reason is obvious. The transfer would extinguish the security under the bond. As the mortgagor would have to find other security if unable to liquidate the bond, the consent lodged would usually be a consent to cancellation of the bond. No mortgagee in his senses would wish to hold a bond with no security.

A usufruct which states that it is granted subject to the usufructuary living or residing on the property lapses if the usufructuary does not do so (Barrie NO v Ferris 1987 (2) SA 709 (C)).

Lapsing of personal servitudes by statute
Two main statutes provide for the amendment or cancellation of registered conditions. The first to be considered is the State Land Disposal Act 48 of 1961, section 2A of which reads:

‘(1) The State President may, on such terms and conditions as he may deem fit, consent to the amendment or cancellation of any condition which was, before or after the commencement of this Act, embodied in or registered against a deed of grant or deed of transfer in terms of any law or otherwise and whereby any right was reserved to or acquired by the State in respect of land.

‘(2) If the State President has in terms of subsection (1) consented to the amendment or cancellation of a condition referred to in that subsection, he may authorise the registrar of deeds concerned in writing to endorse the amendment or cancellation, as the case may be, on the title deed of the land concerned, and the said registrar shall give effect to the said authorization in such manner as may to him appear to be most practical and convenient.’

Note carefully that the section applies only to conditions in favour of the state and that in granting approval the State President may impose conditions and these may be conditions to be complied with before the endorsement of the title or conditions in substitution or amendment of those being cancelled. Usually the state requests an enhancement endowment or consideration in the form of a sum of money from the owner of the land in consequence of the increased value of his land because of the removal of a burden. No transfer duty is payable.

The second statute in terms of which conditions of title, including in this case praedial servitudes, can be altered, suspended or removed is the Removal of Restrictions Act 84 of 1967. This Act, it should be noted at the onset, does not apply to:

Conditions in favour of the state, as alteration or cancellation of these must be effected under the provisions of the State Land Disposal Act dealt with above.

Conditions of title affecting mineral rights, or any condition imposed under section 5(3) of the Townships Amendment Act 34 of 1908 (T) or under section 16(3) of the Orange Free State Metals Mining Act 13 of 1936 or under section 2(2) of the Environment Planning Act 88 of 1967 or in respect of any condition ‘prohibiting or restricting the sale or supply of intoxicating liquor’ (section 1(2)).

Conditions which cannot be brought within the ambit of sub sections (1) and (1A) of section 2 of the Act as outlined infra.

Briefly, the Premier may on his/her own accord or on the application of any person, by proclamation in the Official Gazette, alter, suspend or remove, permanently or for a specified period, unconditionally or conditionally, inter alia, any restrictive condition or servitude registered against the title deed of land which relates to:

the subdivision of the land; or

the purpose for which the land may be used including a restriction preventing or prejudicing the establishment or development of a township thereon; or

the requirements to be complied with or to be observed in connection with the erection of buildings or the use of the land.

Before the Premier can do so he/she must be satisfied:

That it is desirable to do so in the interest of the establishment or development of a township, or in the interest of any area, or in the public interest; or

that the land is required:

for ecclesiastical purposes; or

for public purposes by the state or a local authority; or

for the use or erection of a building by the state or a local authority; or

for purposes incidental to the aforementioned purposes (sections 2(1) and 1(A)).

Section 2(4) lays down the steps the Premier must take before issuing a proclamation of his/her own accord, and section 3 the necessary steps as regards an application to the Premier to issue a proclamation. After a prescribed notice has been published in the Official Gazette the proposal or application is referred to the townships board together with all objections (section 4). After considering the proposal or application, the objections and the recommendation of the townships board the Premier may grant it or refuse it. If an objection is lodged against an application or proposal in respect of a restriction or obligation relating to the purpose for which land may be used, the Premier may not grant it without the approval of the Minister.

In addition to conditions, if any, he/she may impose, the Premier may grant an application subject to the condition that the applicant shall pay compensation to any objector specified in such condition ‘in any amount which, in the absence of agreement between such applicant and objector, shall be determined by the Premier and the likewise specified, and the Premier’s determination shall be final’ (section 4(3)).

Section 5 deals with the case where the Minister informs the Premier that he/she considers it is desirable in the public interest that a restriction or obligation of the nature referred to above should be altered, suspended or removed. After the requirements of this section have been met the Premier issues his/her proclamation.

Section 6 is important and quoted in full:

“(1) The registrar of deeds and surveyor general concerned shall as soon as possible after the publication of a proclamation in terms of section 2(1) or 5 make, free of charge, such appropriate entries in and endorsements on any relevant register, title deeds, diagram or plan in his office or submitted to him, as may be necessary to reflect the effect of the proclamation.

“(2) The provincial secretary concerned shall in writing request the holder of any such title deed to deliver the title deed to him within a period of thirty days or within such longer period as the provincial secretary may on request allow, for submission to the registrar of deeds for the purposes of subsection (1) and shall forward a copy of such written request to the registrar of deeds.

“(3) After receipt of the copy of the said written request the registrar of deeds shall not register any further transactions relating to the land until the entries and endorsements in question have been effected, and shall impound the title deed for the purpose of such entries and endorsements whenever it may for any reason be lodged in his office.

“(4) If such holder fails to comply with such written request he shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand.”

In practice the procedure in most deeds offices is to endorse the registry copy of the title to the land subject to the condition altered, suspended or removed on receipt of the Official Gazette containing the proclamation. A caveat is filed. The owner’s copy of the said title is usually received in the deeds office a few days after the publication of the proclamation because the provincial secretary concerned would have insisted upon its being lodged together with the application. Where there is no application, when the Premier acts on his/her own accord or on behalf of the Minister, it is no doubt necessary to request the holder of the title to deliver it, as specified in section 6(2). Where the condition or right is held under a separate title from the land a request for the delivery of this title would also have to be dispatched, and similarly in the case of a praedial servitude as regards the title to the dominant tenement. When a right that affects the Surveyor General is cancelled, e.g. a right of way, that office must be notified by the Registrar of Deeds (regulation 79bis of the Act).

Section 34 of the General Law Amendment Act 102 of 1972 provides that, if the state owns immovable property subject to a condition that it shall be used only for certain purposes and, if not used for such purposes, shall revert to some person or other and it is no longer required to be used for such purposes, the Minister may publish a notice in the Gazette and a newspaper making known that the property is no longer required for such purposes and that such condition shall lapse after the expiry of a period of one year unless the said person provides the minister ‘with all documents required for the transfer of the ownership of such property in accordance with such condition of title’. After the lapse of the year, upon the application of the Minister or an officer of the public service duly authorised thereto, the Registrar of Deeds must record the fact that the condition of title has lapsed.

Regulation 35(7) to the Deeds Registries Act provides that, if a title deed to land contains conditions which operate pending the establishment of a local authority, such conditions must be omitted from a subsequent title conferring title to that land provided it is clear from the wording that the condition does so lapse.

In the former Transvaal, this provision causes endless problems. Very often it is not at all clear that such a condition does lapse, e.g. it might be inferred that on the establishment of a local authority the right to enforce the condition passes to such authority. Again, the pending clause is often interwoven with other provisions and it is impossible to omit it if the remaining provisions are to make sense. If the conveyancer furnishes sufficient reasons for perpetuating such a condition, the registrar will allow it to remain.